Appearing Before an Administrative Judge at the EEOC

Be brief and focus on key issues
Like any court of law, the Equal Employment Opportunity Commission’s federal–sector process frustrates parties because it often lasts too long.

Administrative judges—who pore over large volumes of documents to weigh each side’s arguments and, ultimately, render a decision—feel the same way. However, there are some things attorneys can do to make it easier and quicker for everyone.

At a recent forum held by the D.C. Bar, AJ Kathryn Brown offered tips for lawyers who appear before her and the other AJs at the Washington field office. Whether legal counselors hail from an agency or represent a mistreated federal worker, they can benefit from her suggestions on reducing paperwork and making the most of their time in discrimination proceedings.

“It’s no secret that our office — like others across agencies— has minimal administrative staff,” Brown said. When AJs have a lighter load of clerical work, she said, it frees up more time for them to focus on the merits of the case.

Material evidence
Topping Brown’s list of hints is the importance of brevity.

Most people, including AJs, are usually pressed for time so lawyers should avoid redundancies in court-related documents and motions.

"Don’t devote excessive verbiage to describe fundamental legal standards,” she said. “[Attorneys should] include a concise recitation of the basic legal standards for establishing discrimination and for entry of summary judgment.”

Key evidence also needs to be the focus of any notices and filings. Briefs should specifically cite the corroborating evidence.

“Administrative judges are human beings, not bloodhounds,” Brown said. “We can miss a nugget of evidence in a 1,000-word record. Don’t rely on the AJ to root out all of the material evidence.”

If a judge rules against a motion after apparently disregarding an important piece of evidence or ambiguous testimony, attorneys should say something.

“Alert the AJ to the place in the record [or] point out the dispute of material facts,” she said.

In addition, she said, lawyers should discover and collect evidence that supports their client’s case, especially where the investigative report is weak. In these instances — and others when there is no direct evidence or no articulated rationale—it’s appropriate for attorneys on either side to move for a decision without a hearing. Counselors also need to remember, Brown said, that EEOC regulations allow AJs to exercise summary judgment at their discretion, without a legal motion.